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22 October, 2013

Selective Parenting - Patents and Morals

The line between what is 'good' and what is 'bad' is often a very fine one, especially when dealing with humans and human development. The question of when is a fetus a 'person' is one which treads an area often incredibly contentious to some, evoking strong feelings about the sanctity of human life or when a human actually is 'human'. From a lawyer's perspective morals are a thing we're meant to avoid and exclude in our considerations - or in other words; morals have no place in the law. This applies to intellectual property as well, with similar considerations having been discussed on this blog, but a recent turn of events have presented patents with yet another conundrum.

A patent which was recently awarded to 23andMe, a company which deals with genetic testing whose proclaimed mission is to be "...the world's trusted source of personal genetic information", deals with the potential to identify certain characteristics (specifically phenotypes) in sperm and the female egg (if picked from a pool of donated ones for example) and then selecting the ones which will have the higher likelihood of producing the desired characteristics in the subsequent baby. To put into more specific terms: "[t]he recipient is allowed to make a specification of one or more phenotypes of interest in the hypothetical offspring". Traits which can be selected include height, eye color, personality characteristics and potential disease risks.

Little Ethan had no idea he'd been "selected"

As can be seen from the basic description of the patent, this has caused quite the uproar, with people calling the potential selection of babies' traits "unethical" and "treacherous", and understandably so. But one has to pose the question, as so aptly pointed out in the title of this article, do morals play a part in patents? This question, as can be guessed, does not have a straightforward answer.

The US patent legislation does not have an explicit provision for the rejection of patents that contravene 'morals' of any kind, leaving the possibility open for patents such as this, which might skirt the realm of moral objection, to be granted. The European view of this is slightly different, as the European Patent Convention dictates that patents cannot be granted for inventions "...which would be contrary to "ordre public" or morality". This has been adopted in the UK under the Patents Act 1977. What this moral standard is is something that would have to be assessed in each separate instance, as the Convention does not define this in itself. In Australia and Canada there is no morality requirement, much like the US. Even so, in the US decision of Lowell v Lewis, the courts saw that under the requirement of 'utility' (used in both the US and Canada) patentable "...invention[s] should not be frivolous or injurious to the well-being, good policy, or sound morals of society". Whether the selection of babies' potential traits would fall under this remains an unanswered question.

Some 15 years ago a patent application was made for combining non-embryonic cells and human cells in the creation of a "humanoid chimera", which was subsequently rejected by the US Patent Office on the grounds that "...inventions directed to human/non-human chimera could, under certain circumstances, not be patentable because, among other things, they would fail to meet the public policy and morality aspects of the utility requirement". Following the USPTO's reasoning here the selection of human traits could be considered immoral; however it needs to be noted that the combination of human cells and non-embryonic cells is far from the selection of potential traits in a baby from human reproductive cells. Since the aforementioned "chimera" patent was filed and rejected, there has been no action on the American legislature to deal with this issue.

Bebop and Rocksteady don't really comprehend chimeras and patents

There is no definitive answer to questions such as whether patents like the one which was granted to 23andMe should be allowed, and they do present a conundrum for people and medical professionals. Being able to at least influence the health and traits of your future offspring could yield a generation of babies with a much lower risk of hereditary disease or other health related issues. On the other hand it could open the avenue for selection leading to the discrimination of certain 'undesired' traits. Keeping the latter point in mind, how much further would genetic selection go from a normal selection for a mate to reproduce with? After all, we all pick our mates based on physical traits (and other traits subconsciously), at least initially, which do influence the traits of the subsequent baby. If a person sees certain traits in another to be undesirable, they will simply not reproduce with them. In this humble writer's opinion the law would have to be very wary with the overt restriction of subject matters that pertain to morals. This is a concept so subjective that the judiciary would have a hard time deciding on issues which do not have a clear answer as to their morality - what is moral to me could very well be immoral to the person next to me.

As of today 23andMe have not done anything with their patent, but the door is still open for them to develop methods to utilize this patent. Much like the recent genetic patent cases, this will an issue that will have to be challenged if it is utilized, and only then will the judiciary be able to decide whether trait selection is patentable or not. Morals aside, a generation of super kids sounds both intriguing and terrifying at the same time.

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The Author

Jani Ihalainen (LL.B. (Hons), LL.M.), is a law graduate with a passion for all that is intellectual property law, residing in London, UK.
He also currently works for an international law firm in the City of London.

The name of a company, much like the names of people, carries significant weight in the company's identity in the mind of the consumer a...

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